The Hawaiian gazette., 1887-11-15

penses, to commence at expiration of
former sentence.
5, Z August, 1883, two years, fine
SO and $3.50 costs; 6, Ii September,
1888, one year or 500 fine and S5S
costs and expenses, to commence at
expiration of former sentence.
Convictions 1, 2 and 3 were by the
: District Judge Of Hawaiian, Kauai.
Convictions 4 and 6 by the District
JUDGE of Nawiliwii and conviction 5
by tie Circuit Court.
On the argument it was contended
that the several sentences had expired
b. efiluxion Of time, but the learned
Judge, on a computation of the sew
eral sentences, found that such was
not the case and remanded the pris-
oner.
From this decision the petitioner
appealed, and the appeal was heard
at this present term.
Mr. A c. Smith, in support Of the
appeal, argued that
where the return shows a detainer
on process, the existence and validity
Of the process are the only facts upon
which Issue can be taken"
"Hurd on Hab. Corp. p. 1926, Sec.
1872"
But though the process be legal
on the face, and therefore a justifca-
ton to the officer in an action for false
imprisonment, the Court would never
theless discharge the prisoner on ha-
Reas corpus. if it appeared that the
Srocess was void, and that upon the
ground that the Imprisonment was
Illegal"
u. p. 81, Sec. 344
1t was held by the Courts that
where the conviction was primo .tdeia
bad, as it appeared on the face of the
warrant of commitment, it was for
those who asserted it to be in different
form, to bring it before the Court"
Church on Hab Corp. Sec. las.
PBut the return in this case refers
only to the mittimuses, and they are
the only record we have Of the pro-
ceedings.
IF the record does not show upon
its face the facts necessary to give the
Court jurisdiction, they viii be pre-
AIMED not to have existed"
Hurd on Hab. Corp p. 367, 1st par
agraph
In the case Of special authorities
given by statute to justices or others
acting out Of the course of the COM
mon law, the instrument by which
they act, whether warrants to arrest,
commitments, OF orders, or convic
tions, or inquisitions, ought, according
to the course of the decisions, to show
their authority on the face Of them by
direct averment or reasonable intend
ment"
H. p. 3S8, Sec. 1893.
Speaking Of commitments from in
ferior Courts the same author (Sec
at1D says: "And if it show a convic-
ton with conditions annexed, not
authorized by law and indiyisible, it
cannot be sustained" Citing Rex. vs..
Barnes, 2 Str. 917.
In the case of Francisco P dos
Santos (HaJeas Corpus tried before
Mr.. Justice Preston, the prisoner
was discharged on the ground that
there was no such offence known
to law as & hoeha me ka mea make"
that being the offence named in the
mittimus
The case Of Manuel de Souza was
an almost identical case
l submit there is no such offence |
known to the law as "mahHka mai ka
halepaahao aku," Escaping from jail |
ThSk is the only description of the of |
fence in the mittimus of July 18th,
sand Sept. 5, 1883. In the mittimuses of |
May 28th. 1888. the charge is: Ma
huka mai ka hale paahao-oia hoi |
hooke hookapae ana ka hooponOpono !
ma Ike kanawai," Escaping from jail
that is to say, obstructing and per
yerting iustice.) 1t nowhere appears
in either of these mittimuses from
what Jail or where these escapes were
made, or at what time; nor that the
prisoner was lawfully detained or i'm
prisoned at the time of his escape.
"A warrant of commitment stated |
that II. B.. in certain affidavit made |
and sworn to by him, before G. c., a
c@npetent authority, by laweto admin
lister the same, did : 3 = = commit |
wilful and corrupt perjury This
was held bad, because it did not state |
that the perjury was committed in the |
course of judicial proceeding"
Church on Hab, Corp, p. 361, Sec.
Isl. citing Reg. VS.. Bartlett, Z Jur.
649, S. c., II L. j., n, S., NJ. c., 127.
SO far as is shown by these mitti-
muses., it does not appear that the
place escaped from was even legal
place of coninemVpt; or that the es
cape was not made before the prisoner
was under legal arrest d sentence.
The Marshal has relied upon these
mittimuses alone, when he might have
pleaded the Judgment and record, and
he is therefore bound by them.
Tbs mittimus of July II. 1883, dates
his Eentence from the expiration of
tie former sentence (mahope tho 0 ka pau
l., lasln ha &c